information which is relevant to affairs entrusted to him."
Restatement (Second) of Agency § 381 (1957); see also Schenck
v. Bear, Stearns & Co., 484 F. Supp. 937, 947 (S.D.N.Y. 1979).
"The scope of affairs entrusted to [the] broker is generally
limited to the completion of a transaction." Schenck, 484
F. Supp. at 947. Accordingly, a broker is not obligated to make
extraordinary efforts, as would have been necessary here, to
discover the genealogy of the stock holdings in his customer's
Jachera's second claim against Merrill Lynch for negligently
misrepresenting the securities Jachera owned is similarly
unfounded for want of a breach of duty. To prove negligence,
the complainant must show that the defendant breached a duty of
reasonable care. See Ramos by DeLeon v. 600 West 183rd
Street, 155 A.D.2d 333, 334, 547 N.Y.S.2d 633, 635 (1st Dep't
1989); see also DiCerbo by DiCerbo v. Raab, 132 A.D.2d 763,
764, 516 N.Y.S.2d 995, 997 (3d Dep't 1987). "One who owes a
duty to another is obliged to perform it reasonably in light of
any apparent risks." McCluskey v. U.S., 583 F. Supp. 740, 749
(S.D.N.Y. 1984). Jachera fails to show that her broker deviated
unreasonably from the standard of care which brokers routinely
adhere to upon acquiring a customer's account from another
brokerage firm. Nor does she demonstrate the existence of
"apparent risks" necessitating an unusually thorough inquiry
into the history of her security holdings. Jachera herself
claims that "it never occurred to [her] that the stock which
was transferred may have been the wrong stock." (Brief in Opp.
to Third-Party Defendant's Motion, p. 4) Consequently, Merrill
Lynch's failure to take measures beyond the usual execution of
its customer's order does not constitute negligence.
Jachera asserts two additional and equally meritless claims of
breach of fiduciary duty and negligence in her Brief in
Opposition to Merrill Lynch's motion. She claims that SSC's
transfer of the wrong securities from the Moore & Schley
account to the Merrill Lynch account was precipitated by her
broker's carelessness in not spelling out the complete names of
the securities in the Transfer Statement. The broker simply
wrote "20,000 DAMSON" and "20,000 CONSOLIDATED CAPITAL." But
Jachera presents no evidence suggesting that Merrill Lynch, by
abbreviating the names of the securities, departed from usual
practice. Moreover, SSC has never denied responsibility for the
mistaken delivery of the securities or attributed its mistaken
transfers to misstatements by Merrill Lynch. The record also
shows that SSC, as the transferor brokerage firm, had the
complete name and number of each security in question (Finger
Aff., Ex. D), and that the Transfer Statement directed SSC to
transfer only what was in the customer's account. (Grillo Aff.,
Ex. A) Without an established causal connection between Merrill
Lynch's actions and plaintiff's ultimate injuries, Jachera's
allegations of negligence cannot be sustained. See Rogan v.
Giannotto, 151 A.D.2d 655, 656, 542 N.Y.S.2d 716, 717 (2d
Dep't 1989) (Plaintiff firefighters' failure to establish
causal connection between defendant's alleged negligence and
firefighters' injuries precluded imposition of liability).
Therefore, Jachera's allegations that Merrill Lynch caused
SSC's mistake by acting negligently and in breach of its
fiduciary duty are without foundation.
Jachera's final and untenable claim is that she is entitled to
recover commissions received by Merrill Lynch on the trades in
dispute and in subsequent trades made with the proceeds of the
disputed securities. Jachera claims that Merrill Lynch was
"unjustly enriched" by the commissions which, she argues, were
the fruit of Merrill Lynch's negligence and breach of duty in
preparing the Transfer Statement and statement of account. But,
as set forth above, Jachera has failed to demonstrate any facts
to show that Merrill Lynch's conduct was anything other than
reasonable. Consequently, there is no basis to conclude that
Merrill Lynch enriched itself unjustly.
Jachera has failed to show that there is a genuine issue of
material fact about the propriety of Merrill Lynch's conduct in
transferring Jachera's securities and preparing her statement
of account. Accordingly, third-party defendant Merrill Lynch's
motion for summary judgment is granted and Jachera's
third-party amended complaint is dismissed.
In summary, plaintiff SSC's motion for summary judgment is
granted in part and denied in part and damages are awarded in
the amount of $10,000.00. Third-party defendant Merrill Lynch's
motion for summary judgment is granted and all claims against
Merrill Lynch are dismissed.